PEOPLE v. WILHITE, JR.

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PEOPLE

v.

WILHITE, JR.

April 21, 2000

No. 221000

Isabella Circuit Court

LC No. 97-008336-FH

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v

CHARLES E. WILHITE, JR.,

Defendant-Appellee.

Before: Fitzgerald, P.J., and Saad and
Whitbeck, JJ.

WHITBECK, J.

The prosecutor appeals by leave granted the
trial court’s verbal ruling granting defendant Charles E.
Wilhite’s motion to withdraw his no-contest plea and
scheduling the case for trial. We reverse because "[t]here
is no absolute right to withdraw a . . . plea once it has been
accepted," Wilhite failed to make the showing necessary to
justify withdrawing his no-contest plea, and the trial court made
its decision while ignoring the available evidence. See People
v Harris, 224 Mich App 130, 131; 568 NW2d 149 (1997).

I. Basic Facts And Procedural
History

Pursuant to a plea agreement, on March 17,
1998, Wilhite pleaded no contest to the charge of assault with a
dangerous weapon, MCL 750.82; MSA 28.277. The record does not
indicate that the parties discussed delaying Wilhite’s
sentence at the time he pleaded no contest or that the prosecutor
intended to dismiss charges after any such delay. The prosecutor
put the full plea bargain on the record, and Wilhite, who was
under oath at the time, and defense counsel both affirmed the
prosecutor’s statement of the bargain. The prosecutor
maintains, and Wilhite does not dispute, that the first time any
party mentioned delaying sentencing was in an April 15, 1998
letter from defense counsel, drafted after Wilhite entered his
plea on March 17, 1998, which stated in pertinent part:

Please be advised we are willing to do an
additional substantial amount of jail time as well as extra hours
of community service and any other stricter requirements you feel
would be fair in return for a delay of sentence and even at the
conclusion of the delay we would plead to a high court
misdemeanor, preserving a criminal record which you were
interested in in [sic] a felony for your purposes. We will be
asking for a delay of sentence in this matter and we wondered if
you would be interested in agreeing to the sentence bargain.
Additionally, during your contact with the victim we would also
be willing to cooperate civilly, if he would be willing to go
along with our sentence bargain.

The prosecutor’s written response, dated
April 20, 1998, stated that "the gravity of the
circumstances surrounding Mr. Wilhite’s case does not lend
itself to any further plea bargaining than that which has already
taken place." Although the prosecutor acknowledged
Wilhite’s intent to ask for this type of sentence
arrangement, the prosecutor noted that he was likely to object to
such an arrangement.

At the initial sentencing hearing on May 22,
1998, defense counsel requested a one-year delayed sentence for
Wilhite under MCL 771.1(2); MSA 28.1131(2) over the
prosecutor’s objection. The trial court granted that request
and ordered sentencing to take place on May 21, 1999.

On May 21, 1999, defense counsel failed to
appear at the scheduled time. The following colloquy then
occurred between the trial court and the prosecutor:

The Court: I put him on a judicial six
month delay, or one year and six month delay or something. I got
a report from DOC.[1] Have you seen that?

Mr. Holmes [The prosecutor]: Yes
sir, I have. I’m not in opposition to that, I just want
– I’m here for the purpose of making sure that everyone
. . .

The Court: Do you want to dismiss it? I
know it’s not . . .

Mr. Holmes: The delay was not part of
the plea agreement. We never anticipated the delay. The
court in its discretion gave the delay. I’m here to ensure
that everybody understands that it was a judicial delay of
sentence, and not agreed to a dismissal by the prosecutor.

The trial court then indicated that it intended
to impose fines, costs, and, possibly, attorney fees. The trial
court also suggested that, after those items were determined, it
intended to discharge Wilhite from the sentence. The matter
adjourned briefly, and when it was recalled, although defense
counsel was still absent, the trial court stated to Wilhite,
"[I]t seems that you may’ve been under a mistaken
belief at the time that the plea was entered so I think you need
to discuss with counsel before we go any further in this
matter." The trial court again stated that it was inclined
to impose fines and costs "and send you on your way."
However, because defense counsel was on the way to court, the
trial court continued the case. When the case was recalled again,
the trial court adjourned the case to June 4, 1999, apparently at
defense counsel’s request.

After several more delays, the parties
reconvened on July 2, 1999, at which time defense counsel
explained that "we were to come back here today because the
prosecutor asked to have some time to find the victim to ask him
if it was all right to do what we were going to do."
However, defense counsel reported, the prosecutor had not
contacted the victim and he (defense counsel) wanted his
"own thirty days" to attempt to find the victim. The
assistant prosecutor present[2]
at the hearing stated that he understood that the prosecutor
ordinarily in charge of the case intended to talk to the victim,
and following that discussion, the prosecutor was going to
consider reducing the charge to attempted felonious assault.
Defense counsel responded, "That’s not true, your
honor." The trial court then asked, "Are you moving to
withdraw your plea, Mr. Veldhuis [defense counsel]," and
defense counsel responded, "I guess we are." Mr. Kranz,
the assistant prosecutor, responding to the request to withdraw
the please, stated:

I guess this is pretty old, your honor. I
don’t know, I’m not prepared for this type of motion
today. I’m here to tell you what we’ve done to make
efforts, and what I understand we were supposed to do.

Mr. Veldhuis: We would ask to withdraw
the plea, your honor.

The Court: And I assume the basis for
that is – I mean this is about the third or fourth time
I’ve had this scheduled. As I understand it, Mr. Veldhuis,
you thought that the delay, and your client thought that the
delay of sentence, at the conclusion of the delay the prosecutor
was going to dismiss. Is that correct?

Mr. Veldhuis: That is correct. And . . .

The Court: Is that correct, Mr. Wilhite?

Defendant: Yes sir, your honor.

The Court: That’s what you believed
when you entered the plea?

Defendant: That’s what was
explained to me, your honor.

The Court: The court is going to waive
notice to the prosecutor because we’ve been here, the
prosecutor has been here when you have, Mr. Veldhuis, and
we’ve all been here together and there’s no surprise.
The court is going to permit you to withdraw the plea.

* * *

Mr. Kranz: It’s my understanding
that our office never made any type of delay offer at all. That
was court imposed. Wherever their understanding is that they
would be dismissed at the end of the delay is beyond me. No one
at our office has ever made any offer like that. My understanding
was . . .

The Court: Well, if you want to get a
copy of the – this whole thing has been processed in that
vein. I don’t know how anybody got that impression. If I
indicated I was going to give a delay of sentence, Mr. Kranz, and
I don’t have any recollection of what I did a year ago in
this case, but if I indicated that to Mr. Veldhuis and then he
goes out and tells his client that this delay – at the end
of the delay you will get the charges dismissed then his client
is entering a plea under a mistaken belief. So we were here
on June 3 – whoops. This plea was entered – it looks
like the plea was entered on 3/17/98. This matter was bound over,
it looks like, in December of ’97. So it’s about a
year-and-a-half old. In light of the fact that cases routinely
prior to me coming to the bench went through this court in a
year, I don’t see where there’s any inordinate amount
of delay.

Mr. Kranz: Your honor, may we view the
transcript of the plea to see if anything was mentioned before
you make this decision?

Mr. Veldhuis: Now the . . .

The Court: Whether or not he withdraws
his plea is discretionary with me. You know, Mr. Kranz, I’ve
heard enough about this case. I mean if the defendant is under a
mistaken belief at the time of the plea was entered, he’s
under a mistaken belief. Mr. Veldhuis tells him, that’s what
he advises him. I’ve known Mr. Veldhuis since we were in
grade school. I don’t have any reason to question his
veracity. I’ve practiced with him – he began practicing
law about my third or fourth year of practice. I’ve never
had any reason to question his veracity in the sixteen or
seventeen years I’ve practiced around him. Now that’s
the belief of the defendant. It doesn’t matter what
transcripts say etc. He tells me that. Mr. Veldhuis tells me he
informed him of that. That’s the way it is. He can
withdraw his plea and we’ll start over. [Emphasis supplied.]

II. Standard For Withdrawing A
Plea And Standard of Review

The trial court appeared to treat
Wilhite’s July 2, 1999 request to withdraw his plea as
though it were made before the trial court imposed a sentence,
even though Wilhite had spent the year-long delay before
sentencing abiding by terms substantially similar to probation.
See MCL 771.1(2); MSA 28.1131(2). Assuming that those
probation-like terms did not constitute a sentence, MCR 6.310(B)
provides the process for withdrawing a guilty plea:

On the defendant’s motion or with the
defendant’s consent, the court in the interest of justice
may permit an accepted plea to be withdrawn before sentence is
imposed unless withdrawal of the plea would substantially
prejudice the prosecutor because of reliance on the plea. If the
defendant’s motion is based on an error in the plea
proceeding, the court must permit the defendant to withdraw the
plea if it would be required by MCR 6.311(B).

Because Wilhite did not allege an error in the
plea-taking procedure, he relied on the trial court’s
discretionary power to permit withdrawal of the plea before
sentencing. Therefore, Wilhite had the burden of showing that
withdrawal was "in the interest of justice," meaning
that he had to articulate "a fair and just reason" for
withdrawing the plea. Id.; Harris, supra. Wilhite
also had to prove that withdrawing the plea would not
"substantially prejudice the prosecutor because of reliance
on the plea." MCR 6.310(B).

Because the trial court had the discretion to
grant or deny Wilhite’s request to withdraw his plea, we
review the trial court’s decision for an abuse of
discretion. See Harris, supra.

III. Abuse Of Discretion

As set out at length above, the record does not
indicate that, on July 2, 1999, Wilhite or his attorney presented
a reason for his request to withdraw his no-contest plea.
Instead, the trial court suggested that Wilhite might want to
withdraw his plea and then proposed a reason why Wilhite might
want to do so: Wilhite thought that when he finished adhering to
the terms of the sentence delay, the prosecutor intended to
dismiss the charges. Asked if he had such an understanding when
he entered his no-contest plea, Wilhite went along with the trial
court’s suggestion and responded, "That’s what was
explained to me, your Honor." While leading questions by the
trial court may be appropriate in some circumstances, here the
trial court lacked a factual basis for its suggestions to
Wilhite.

Clearly, the trial court relied on its trust in
defense counsel as support for the decision it made to inquire
about a plea withdrawal. We have no reason to question defense
counsel’s reputation for veracity or the trial court’s
faith in that reputation. However, the law requires the trial
court to make its decision according to the evidence on the
record, none of which supported its decision in this case.
See generally People v Cheeks, 216 Mich App 470, 479; 549
NW2d 584 (1996) (trial court did not abuse its discretion because
the record supported its conclusion on the underlying legal
issue). This failure to take notice of the record, or even to
consult the record to determine what facts it might reveal, is
the essence of an abuse of discretion, which the Michigan Supreme
Court so cogently described in Spalding v Spalding, 355
Mich 382, 384-385; 94 NW2d 810 (1959):

Where, as here, the exercise of discretion
turns upon a factual determination made by the trier of the
facts, an abuse of discretion involves far more than a difference
in judicial opinion between the trial and appellate courts. The
term discretion itself involves the idea of choice, of an
exercise of the will, of a determination made between competing
considerations. In order to have an ‘abuse’ in reaching
such determination, the result must be so palpably and grossly
violative of fact and logic that it evidences not the exercise of
will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of
passion or bias.[3]

Here the trial court, who admitted that it
could not remember what occurred, concluded that defense
counsel’s representation was the best substitute for the
transcripts. Furthermore, that the trial court indicated that
those transcripts would not affect its decision in the case no
matter what they indicated, suggests that it was unwilling to
engage in the weighing and analysis the Spalding Court
stated was the crux of a proper exercise of discretion;
similarly, we believe that an unprejudiced person considering the
facts on which the trial court acted would conclude that there
was no justification for the trial court’s ruling. People
v Ullah, 216 Mich App 669, 673; 550 NW2d 658 (1996).

The basis for the trial court’s decision
is even more troubling because Wilhite did not show that
withdrawing his no-contest plea would be in the interest of
justice. Harris, supra at 131; People v Jackson,
203 Mich App 607, 611; 513 NW2d 206 (1994). Wilhite neither
claimed actual innocence nor claimed that he had a valid defense
to the charge. People v Thew, 201 Mich App 78, 96; 506
NW2d 547 (1993); People v Spencer, 192 Mich App 146,
151-152; 480 NW2d 308 (1991). Rather, Wilhite voluntarily and
knowingly pleaded no-contest to the charges pursuant to a plea
agreement placed on the record, which did not encompass a delay
of sentence or dismissal of charges. Even if defense counsel
suggested to Wilhite that a delayed sentence with dismissal of
the charges might be forthcoming, counsel’s incorrect advice
is insufficient to demonstrate that the plea was involuntary,
which would be reason enough to allow Wilhite to withdraw his
plea. See People v Miles, 454 Mich 90, 106, n 1; 559 NW2d
299 (1997); In re Oakland Co Prosecutor, 191 Mich App 113,
121-125; 477 NW2d 455 (1991). Nor is subjective dissatisfaction
with a sentence grounds for withdrawing a plea, if that was
Wilhite’s true motivation for seeking to withdraw his plea. People
v Haynes (After Remand), 221 Mich App 551, 559; 562 NW2d 241
(1997). Because Wilhite did not establish "a fair and just
reason for withdrawal of the plea," Jackson, supra at
611, the prosecutor did not have to establish that substantial
prejudice would result from the withdrawal, People v
Kennebrew, 220 Mich App 601, 605; 560 NW2d 354 (1996).

We reverse and remand for sentencing. We do not
retain jurisdiction.

/s/ William C. Whitbeck
/s/ Henry William Saad

FITZGERALD, P.J. (dissenting.)

I respectfully dissent from the majority’s
conclusion that the trial court abused its discretion by granting
defendant’s motion to withdraw his no contest plea and
scheduling the case for trial. Because I cannot conclude that
there was no justification for the trial court’s ruling, I
would affirm.[4]

MCR 6.310(B) states the standard of review that
governs motions to withdraw guilty pleas before sentence:

On the defendant’s motion or with the
defendant’s consent, the court in the interest of justice
may permit an accepted plea to be withdrawn before sentence is
imposed unless withdrawal of the plea would substantially
prejudice the prosecutor because of reliance on the plea. If the
defendant’s motion is based on an error in the plea
proceeding, the court must permit the defendant to withdraw the
plea if it would be required by MCR 6.311(B).

Use of the term "may" denotes that
the trial court has discretion to allow the withdrawal of the
plea before sentencing if withdrawal is in the interests of
justice and the withdrawal does not substantially prejudice the
prosecutor because of reliance on the plea. People v Spencer,
192 Mich App 146, 150; 480 NW2d 308 (1991). An abuse of
discretion exists when an unprejudiced person, considering the
facts on which the trial court acted, would conclude that there
was no justification or excuse for the ruling made. People v
Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996).

Where, as here, a defendant moves to withdraw
the plea before sentencing, the burden is on the defendant to
establish a "fair and just" reason for withdrawal of
the plea; the burden then shifts to the prosecutor to establish
that substantial prejudice would result from allowing the
defendant to withdraw the plea. People v Jackson, 203 Mich
App 607, 612; 513 NW2d 206 (1994).

I agree that there is no evidence on the record
to suggest that a dismissal of the charges against defendant upon
successful completion of the delayed sentence was a part of the
plea agreement. However, defendant’s proffered reason for
withdrawing his plea was not that dismissal of the charges was
part of the plea agreement, but rather that he pleaded no contest
as a result of defense counsel’s erroneous advice that the
charges would be dismissed upon successful completion of the
delayed sentence. Defense counsel represented to the court that
he indeed advised defendant that the charge would be dismissed
upon successful completion of the delayed sentence, despite the
fact that there is absolutely nothing on the record to support a
belief that the prosecutor agreed to dismiss or reduce the charge
if defendant complied with the conditions of the delay. In light
of defense counsel’s representation, the trial court
determined that defendant’s plea was the result of a
"mistaken belief," and that this mistaken belief was a
fair and just reason for withdrawal of the plea.

Given the trial court’s statement that it
was unnecessary to consult the record to determine the exact
terms of the plea agreement, as well as the trial court’s
statements with regard to withdrawal of the plea, I find it clear
that the trial court essentially concluded that defendant did not
receive the effective assistance of counsel with regard to the
plea and that it was therefore in the interest of justice to
allow defendant to withdraw his plea. Under these circumstances,
I cannot conclude that an unprejudiced person would find that
there was no justification for the court’s ruling that
defendant established a fair and just reason for withdrawal of
his plea. Ullah, supra at 673.

Because the trial court found that defendant
established a "fair and just" reason for withdrawal of
his plea, Jackson, supra at 611, the prosecution was
required to establish that substantial prejudice would result
from the withdrawal. People v Kennebrew, 220 Mich App 601,
605; 560 NW2d 354 (1996). From my review of the record, it
appears that the prosecution offered no evidence to support a
finding that substantial prejudice would result from the
withdrawal. Accordingly, I would hold that the trial court did
not abuse its discretion by granting defendant’s motion to
withdraw his no contest plea.

Affirmed.

/s/ E. Thomas Fitzgerald

FOOTNOTES:

[1]This was, apparently, an allusion
to the Department of Corrections case reports dated April 19,
1999 and May 21, 1999. In the first report, the writer
recommended that "this case be dismissed or [Wilhite] be
charged with a lesser offense. In the second report, the writer
indicated that "the court is considering discharging the
case against [Wilhite]."

[2]The senior assistant prosecutor
for Isabella County had handled all previous hearings. This was a
different member of the prosecutor’s office.

[3]We cite Spalding because
it, better than any other authority, explains the exercise of
discretion. We do not intend to alter how courts apply or
interpret the abuse of discretion standard of review in criminal
cases by citing this civil case.

[4]I note that defendant could be
tried on the original charge of assault with intent to do great
bodily harm less than murder, MCL 750.84; 28.279, if the plea is
withdrawn.